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Editorial Committee of the Cambridge Law Journal
Good Ideas, Good Television and Breach of ConfidenceAuthor(s): Andrew TettenbornSource: The Cambridge Law Journal, Vol. 42, No. 2 (Nov., 1983), pp. 209-211Published by: Cambridge University Press on behalf of Editorial Committee of the Cambridge LawJournalStable URL: http://www.jstor.org/stable/4506551 .
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C L.J. C L.J. Case and Comment Case and Comment 209 209
Lords could give effect to Lord Diplock's concluding remark would be substantially to qualify Faramus, first by accepting that the ;'right to work" is now a well-recognised principle of public policy, or secondly by fashioning a new tool of public policy. Either step seems likely to provoke controversy. The right to work has failed the rigorous test of intellectual criticism and has not been greeted by unanimous judicial applause: in Mclnnes v. Onslow-Eane [1978] 1 W.L.R. 1520, Megarry V.-C. hoped that it would iinot come to be accepted by the law as being a term of art, or as an example of what can truly be called a 'right' " (p. 1528). The development of a new head of public policy to meet criticism of this kind seems likely to lead to the danger cautioned by the more conservative Donaldson L.J. in Cheall that in taking such a step the judges would be applying considerations of 'ipolltical rather than public policy," something which is "not their function' (p 371). Donaldson L.J. continued by saying that judges have the capacity to declare public policy only when "they are satisfied that any reasonable person would agree that the enforcement of the provision under consideration would be 'a harmful thing'" (ibid.). On the matter at issue in Cheall, he had "no doubt that reasonable people could be found in large numbers both to support and to oppose the proposition that on balance the Bridlington Principles and rule 14 were harmful things' (ibid.). It is submitted that that is true even where the operation of rules and principles of this kind have the effect of putting people's jobs in jeopardy.
K. D. EWING.
GOOD IDEAS GOOD TELE<SION AND BREACH OF CONFIDENCE
THE development of the law of breach of confidence proceeds apace, the latest instalment being Hirst J.'s Iow-key but instructive decision in Fraser v. Thames T.V. [1983] 2 All E.R. 101. Three young musicians (the plaintiffs) had an inspired idea for a television series. They described it in general terms (but wrote nothing down) at a meeting with the defendants, Thames T.V., who liked it. Later through their agent, Mr. Fraser, they entered into a contract with Thames whereby they gave Thames an option on their idea in exchange for £SOO and a promise by Thames not to use the idea without allowing them to act in any resulting series. The idea was worked up by Thamess scriptwriters into the very successful series "Rock Follies," which Thames produced without using the plaintiffs' servlces
The plaintiffs sllccessfully sued Thames for breach of contract, and both Thames and their scriptwriters for breach of confidence
Lords could give effect to Lord Diplock's concluding remark would be substantially to qualify Faramus, first by accepting that the ;'right to work" is now a well-recognised principle of public policy, or secondly by fashioning a new tool of public policy. Either step seems likely to provoke controversy. The right to work has failed the rigorous test of intellectual criticism and has not been greeted by unanimous judicial applause: in Mclnnes v. Onslow-Eane [1978] 1 W.L.R. 1520, Megarry V.-C. hoped that it would iinot come to be accepted by the law as being a term of art, or as an example of what can truly be called a 'right' " (p. 1528). The development of a new head of public policy to meet criticism of this kind seems likely to lead to the danger cautioned by the more conservative Donaldson L.J. in Cheall that in taking such a step the judges would be applying considerations of 'ipolltical rather than public policy," something which is "not their function' (p 371). Donaldson L.J. continued by saying that judges have the capacity to declare public policy only when "they are satisfied that any reasonable person would agree that the enforcement of the provision under consideration would be 'a harmful thing'" (ibid.). On the matter at issue in Cheall, he had "no doubt that reasonable people could be found in large numbers both to support and to oppose the proposition that on balance the Bridlington Principles and rule 14 were harmful things' (ibid.). It is submitted that that is true even where the operation of rules and principles of this kind have the effect of putting people's jobs in jeopardy.
K. D. EWING.
GOOD IDEAS GOOD TELE<SION AND BREACH OF CONFIDENCE
THE development of the law of breach of confidence proceeds apace, the latest instalment being Hirst J.'s Iow-key but instructive decision in Fraser v. Thames T.V. [1983] 2 All E.R. 101. Three young musicians (the plaintiffs) had an inspired idea for a television series. They described it in general terms (but wrote nothing down) at a meeting with the defendants, Thames T.V., who liked it. Later through their agent, Mr. Fraser, they entered into a contract with Thames whereby they gave Thames an option on their idea in exchange for £SOO and a promise by Thames not to use the idea without allowing them to act in any resulting series. The idea was worked up by Thamess scriptwriters into the very successful series "Rock Follies," which Thames produced without using the plaintiffs' servlces
The plaintiffs sllccessfully sued Thames for breach of contract, and both Thames and their scriptwriters for breach of confidence
This content downloaded from 185.2.32.28 on Mon, 16 Jun 2014 01:14:01 AMAll use subject to JSTOR Terms and Conditions
The Cambridge Law Journal [1983] 210
the damages recoverable being later compromised at some £250,000. With the merits of the claim in contract we are not concerned7 though we will return to it later. The claim for breach of confidence, however, raised some interesting points.
To begin withS the defendants argued that ideas presented orally and in undeveloped form, as here, could not be protected at all. Copyright protection, they said, was for good social reasons limited to material in permanent written form, and this requirement should not be open to evasion by alleging breach of confidence instead. This argument has some attraction; what amounts to plagiarism of vague synopses is inherently uncertain, and the free flow of ideas may well be inhibited by tendentious claims that in origin they are somebody elsees. Nevertheless Hirst J. rightly rejected it. As the Copyright Act 1956, s. 46(4), expressly preserved liability for breach of confidence, it would be odd if the latter head of liability were affected by limitations applying to the former. More importantly, as Hirst J. observed, breach of confidence protects only secrets, whereas copyright covers even material already made public; thus the differ- ent scope and wider ambit of copyright protection iustified more stringent limits on that protection. Of course, his Lordship was at pains to point out, that did not mean that all ideas in whatever form were protectable by the law of breach of confidence; they must still be original and substantial enough to have some commercial value. But the mere fact that ideas were oral and comparatively unde- veloped did not of itself preclude their protection.
Secondly, Hirst J. held the defendants scriptwriters liable with the defendants for the breach of confidence on the ground that they knew the source of the material they had worked on. This again is straightforward, significant only in that it was stressed that actual,
not constructive, knowledge was necessary, thus continuing a healthy distrust by common lawyers in commercial cases of the equitable concept of constructive notice.
Thirdly, the defendants were held liable in damages for breach of confidence without even any argument. Breach of confidence being within the equitable jurisdiction, presumably these damages were awarded under Lord Cairns' Act (cf. English v. Dedham Vale Properties [1978] 1 All E.R. 382, 399, per Slade J.); in any case their basis does not matter so much as does the acceptance that breach of confidence, like any other breach of ob}igation, engenders liability in damages in the normal way. If Fraser's case contributes this much to the synthesis of the equitable and legal sides of the law of obligations it will not have been in vain.
To return, however, to the claim in contract, which raised a neat point in the law of agency. The contract with Thames had been
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C.L.J. Case and Comment 211
signed by Mr. Fraser on behalf of the plaintiffs, apparently as agent;
yet Mr. Fraser was joined as a co-plaintiff. Did this not infringe the
rule that an agent cannot enforce a contract in his own name? In
fact Hirst J. found that Mr. Fraser had contracted as a co-principal, so the problem did not arise. Yet rather more controversially he
also suggested that it would not have mattered even if Mr. Fraser
had signed merely as agent. According to Schmaltz v. Avery (1851) 16 Q.B. 655, he argued, an agent purporting to contract for an
unnamed principal could then claim to be that principal himself, on
the reasoning that the other party to the contract, not having any
particular principal in mind, could not be prejudiced. Did not the
same reasoning, he suggested, apply where a soi-disant agent claimed
to be an additional principal: after all, who were Thames to complain at having someone else to sue on the contract? With respect, it is submitted that this reasoning is unsound; the presence of an extra
unexpected party on one side of a contract may well prejudice the
other party, for it may mean an extra claim for damages if the
contract is broken. Of more practical importance, it also means
another person to be consulted if it is subsequently sought to alter
or annul the contract, since at least in commercial matters it seems that release by one co-contractor does not necessarily bind the others
(see, e.g., Steeds v. Steeds (1889) 22 Q.B.D. 537). So, it is suggested, Hirst J. would have done better to decide the case solely on the basis that Fraser contracted as principal; that apart, it would be far better to adhere fairly rigidly to the rule in Bickerton v. Burrell
(1816) 5 M. & S. 383, that prima facie the terms of the contract are conclusive and that a contract made on behalf of a named principal is made for him and him alone.
Andrew Tettenborn.
C.L.J. Case and Comment 211
signed by Mr. Fraser on behalf of the plaintiffs, apparently as agent;
yet Mr. Fraser was joined as a co-plaintiff. Did this not infringe the
rule that an agent cannot enforce a contract in his own name? In
fact Hirst J. found that Mr. Fraser had contracted as a co-principal, so the problem did not arise. Yet rather more controversially he
also suggested that it would not have mattered even if Mr. Fraser
had signed merely as agent. According to Schmaltz v. Avery (1851) 16 Q.B. 655, he argued, an agent purporting to contract for an
unnamed principal could then claim to be that principal himself, on
the reasoning that the other party to the contract, not having any
particular principal in mind, could not be prejudiced. Did not the
same reasoning, he suggested, apply where a soi-disant agent claimed
to be an additional principal: after all, who were Thames to complain at having someone else to sue on the contract? With respect, it is submitted that this reasoning is unsound; the presence of an extra
unexpected party on one side of a contract may well prejudice the
other party, for it may mean an extra claim for damages if the
contract is broken. Of more practical importance, it also means
another person to be consulted if it is subsequently sought to alter
or annul the contract, since at least in commercial matters it seems that release by one co-contractor does not necessarily bind the others
(see, e.g., Steeds v. Steeds (1889) 22 Q.B.D. 537). So, it is suggested, Hirst J. would have done better to decide the case solely on the basis that Fraser contracted as principal; that apart, it would be far better to adhere fairly rigidly to the rule in Bickerton v. Burrell
(1816) 5 M. & S. 383, that prima facie the terms of the contract are conclusive and that a contract made on behalf of a named principal is made for him and him alone.
Andrew Tettenborn.
maintenance of a blameworthy wife
The centenary of the statute conferring a matrimonial jurisdiction on magistrates' courts was marked by the enactment of the Domestic
Proceedings and Magistrates' Courts Act 1978, which made far-
reaching changes in the law to be applied. Not until Robinson v. Robinson [1983] 2 W.L.R. 146, however, did the consequence of misconduct on the part of the spouse seeking financial provision become clear. In this case a wife applied for an order on the grounds of her husband's failure to provide reasonable maintenance for herself and for their child; and the magistrates found on the facts that the husband had not misconducted himself in any way, whereas the wife had deserted him.
Although under the old law a court was precluded from making an order (except for a child) if the applicant was in desertion or had
maintenance of a blameworthy wife
The centenary of the statute conferring a matrimonial jurisdiction on magistrates' courts was marked by the enactment of the Domestic
Proceedings and Magistrates' Courts Act 1978, which made far-
reaching changes in the law to be applied. Not until Robinson v. Robinson [1983] 2 W.L.R. 146, however, did the consequence of misconduct on the part of the spouse seeking financial provision become clear. In this case a wife applied for an order on the grounds of her husband's failure to provide reasonable maintenance for herself and for their child; and the magistrates found on the facts that the husband had not misconducted himself in any way, whereas the wife had deserted him.
Although under the old law a court was precluded from making an order (except for a child) if the applicant was in desertion or had
This content downloaded from 185.2.32.28 on Mon, 16 Jun 2014 01:14:01 AMAll use subject to JSTOR Terms and Conditions
